Any person to whom the Consumer Protection Act 1987 applies is liable for damage caused wholly or partly by a defect in a product.
The primary types of defendant which the Act applies to are:
The producer of the product is the person who manufactured, won, abstracted or engaged in an analogous process with the product: s 1(2), s 2(2)(a).
An own-brander is ‘any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product’: s 2(2)(b).
An importer is any person who imported the product into the EU from outside the EU ‘in order, in the course of any business of his, to supply it to another’: s 2(2)(c).
However, any other person who supplies a product to any other person in the supply-chain can be liable if:
A person who supplies a product comprised of other products or raw materials is only treated as supplying the overall product. They are not treated as also supplying the component products or raw materials: s 1(3).
Where multiple people might be liable for the same loss, each defendant is joint and severally liable: s 2(5).
A product is ‘goods’ and electricity. ‘Goods’ includes (but it not limited to): substances; growing crops; things attached to land; ships, aircraft and vehicles; components and raw materials used in other products. The Consumer Protection Directive defines ‘goods’ as ‘all movables’ (Art 2).
A product is supplied when it is: sold; hired out; lent; subject to a hire-purchase agreement to furnish the goods; furnished in performance of any contract for work and materials; provided for consideration other than money; provided in connection with the performance of a statutory function; or given as a prize or gift. Gas and water is supplied when it is made available.
Section 3 of the Consumer Protection Act 1987 states that there is a defect in a product if ‘the safety of the product is not such as persons generally are entitled to expect’. The courts should take into account:
The way the product was marketed (including price) (s 3).
The get-up and any marks used in relation to the product (s 3).
The time at which the product was supplied (s 3).
Anything which ‘might reasonably be expected to be done with or in relation to the product’ (a danger arising only out of misuse is unlikely to be a defect): Chadwick v Continental Tyres [2008] ScotCS CSOH 24).
Instructions or warnings provided ‘with respect to, doing or refraining from doing anything with or in relation to the product’ (s 3).
The safety of comparable products on the market: A v National Blood Authority [2001] EWHC 446 (QB).
The court may not assume there is a defect solely because later versions of the product are safer: s 3(2). In addition:
Whether the defendant could have avoided the harm is not relevant: A v National Blood Authority [2001] EWHC 446 (QB).
The claimant does not have to prove what caused the defect: Ide v ATB Sales [2008] EWCA Civ 424.
Aspects which are inherent to how that type of product works (such as coffee being hot) are not considered defects: Bogle v McDonalds Restaurants [2002] EWHC Civ 490.
Risks which are well-known and accepted by the public (such as birth control not being 100% effective) are not considered defects: Richardson v LRC Products [2000] 59 BMLR 185.
When determining whether the product is defective, some courts have distinguished between standard and non-standard products: A v National Blood Authority [2001] EWHC 446 (QB). Not all cases have approved of this approach, however: see Wilkes v DePuy International Ltd [2016] EHWC 3096 (QB)).
A standard product is a product that is built and performs the way the maker intended. In these cases, the claimant is arguing that the defect is a harmful characteristic inherent in the design and ordinary performance of the product.
If the product is standard, the court will look at all the characteristics of the case to determine if the product is safe for foreseeable use: A v National Blood Authority [2001] EWHC 446 (QB).
The social utility of the particular design of the product can be relevant if that feature’s utility outweighs its risks: Wilkes v DePuy International Ltd [2016] EHWC 3096 (QB). This is assessed in general, not with respect to the impact on the specific claimant.
A non-standard product is a product which is different from other products in the same series: those which are not built and do not perform as intended. In these cases, the claimant is arguing that the defect is a characteristic which makes the non-standard product different from the rest.
If one of the characteristics of a non-standard product which does not occur in other products of the same type is harmful, the product is normally treated as defective unless there is widespread public knowledge and acceptance of that kind of deviation. The social utility of the product is not relevant: A v National Blood Authority [2001] EWHC 446 (QB).
The producer may still escape liability if he can show one of six defences. The burden is on the producer to show these six defences.
It is a defence to show the defect is attributable to a requirement imposed by EU law: s 4(1)(a).
It is a defence to show that the defendant has never supplied the product to another: s 4(1)(b).
It is a defence to show that the defect did not exist in the product at the relevant time: s 4(1)(d).
It is a defence to show that the supply was not in the course of the defendant’s business and they are either not a producer, own-brander or importer or is are only one of those things for non-profit purposes: s 4(1)(c).
It is a defence to show that ‘the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control’: s 4(1)(e).
It is a defence to show that the defect was a defect in a product which the defendant’s product had been built or comprised into and the defect was ‘wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product’: s 4(1)(f).
For these defences, the relevant time is:
The case of C-300/95 Commission v UK [1997] ECR I-2649 decides that:
If the risk is known about, the defence does not apply. It does not matter that there is nothing the defendant can do to prevent the risk or detect which products have it: A v National Blood Authority [2001] EWHC 446 (QB).
‘Damage’ under the Act includes personal injury, death, property damage and loss of property: s 5(1). Damage to the defective product itself or to any product of which it is a component is irrecoverable: s 5(2).
The defendant is not liable for any loss of or damage to property which:
The defect must cause the loss in accordance with the normal rules of causation: McGlinchey v General Motors (UK) Ltd [2012] CSIH 91.
